Sugarman v. Fraser

DELANY, J.

The plaintiffs seek to recover the amount of their commissions and expenses incidental to the procuring of two mortgage loans on the property of the defendant Catherine Fraser, who in all the transactions was represented by Andrew S. Fraser, her agent. The agreement was in writing and as follows:

“New York April 12th, 1910.

“In consideration of one dollar to me in hand paid by Messrs. Sugarman and Kahn of No." 302 Broadway, Manhattan, New York City, I hereby agree to accept the loan of a first mortgage of five thousand dollars ($5000) at 5% for three years on my property at northwest corner of 71st street and 14th avenue, one hundred feet by one hundred feet (lOOzlOO); also a second mortgage for $1250 for 18 months at 6% payable in installments of $500 at the end of six months from date of closing, and the balance in equal quarterly payments, and I agree to pay said Sugarman & Kahn the sum of $475 to cover all recording fees, commissions and disbursements, etc., of every nature for placing said two mortgages. This authorization to be void unless both mortgages are placed and accepted at one time, and the acceptance must be in my hands within-days.

“It is agreed that the first mortgagee is to withhold $250 of the principal until the house on the premises is painted and put in good condition; and when this is done the $250 is to be paid to the owner upon demand.

“Dated New York, April 12th, 1910.

“Catherine B. Fraser,

“By Andrew S. Fraser.

“Andrew S. Fraser.”

The plaintiffs secured acceptances of the mortgage loans and the Lawyers’ Title Company proceeded with the investigation of the title. The time for closing the transaction was set for April 26th, but for the convenience of the defendants postponed to April 29th. It then transpired that an objection was raised to the title; and, with a view zto obviating this difficulty and permitting the transaction to be closed; the defendants’ attorneys considered the question of law alleged to be involved, and, while not conceding the tenability of the objection, endeavored to procure information and affidavits which would have undoubtedly removed all ground for contention. The importance of the time of obtaining the money was first mooted on May 3d, when defendants’ attorneys write, “Our clients insist on closing the matter at once,” but we find them on the 5th still engaged in helping to solve the difficulty, and saying, “Without prejudice we are trying to locate Mr. Mecke (whose written statement was required to satisfy the examiner of the title) and we will have some information to-morrow.” About this time a suggestion was made that, as the Title Guarantee Company had previously passed the same title, a letter of indemnity from the company would preclude further delay. It was ascertained that this could be obtained provided a fee for the same were paid, and defendants intimate that plaintiffs should pay the fee, stating in their letter of May 5th, “You ought to be able to do this out of the $475, more or less, that is coming to you.” Plaintiffs, however, on the following day declined and properly to bear that expense. Clearly the contention raised alone prevented the completion of the business up to this point. The closing thereafter seemed to be in abeyance for a few days, when the objection to the title was withdrawn, and on May 12th plaintiffs fixed the next day for closing, but the defendants did not appear at the appointed time and place, and several days thereafter said that they did not want the money.

[1] In the contract no time was fixed for the performance, and a reasonable time was therefore implied within which plaintiffs should have performed their part. [2] The evidence in the case shows that they had lenders ready and able to furnish the money. The only testimony which bears on the time of performance is contained in the line of February 3d, “Our clients insist upon closing the matter at once.” No demand was made for a fixed time, then or thereafter. We do not pass upon the sufficiency of the objection raised. It is well known that delays are usual in such transactions because of objections to title sometimes tenable and sometimes untenable, and, if such negotiations are unnecessarily protracted and the borrower wishes to stand on the soundness of his title, he may demand performance within a fixed but reasonable time.

Time here was not of the essence of the contract and the case discloses no unreasonable delay, the deterring negotiations seeming to have been conducted by acquiesence of both parties. Under the circumstances, we believe that there was ample evidence to sustain the judgment of the court below.

Judgment affirmed, with costs.

HENDRICK, J., concurs.